John McCormack

March 29, 2011 1:16 PM

A liberal group called the Greater Wisconsin Committee has been running an attack as vicious as it is misleading against Wisconsin supreme court justice David Prosser, who faces off against liberal assistant attorney general JoAnne Kloppenburg in an April 5 election. The stakes are quite high in this election, as the ideological makeup of the court--and potentially the fate of Scott Walker's budget repair bill--hangs in the balance (split decisions usually pit four judicial conservatives, including Prosser, against three liberals).

In the Greater Wisconsin Committee ad, the narrator claims: "A priest sexually abuses children for 30 years across Wisconsin. A mother tells DA David Prosser her two young sons were sexually assaulted. What does Prosser do? Prosser refuses to prosecute; doesn’t even ask the police to investigate. Instead, Prosser meets with the bishop. To avoid scandal, they send the priest to another community and the assaults continue. Tell David Prosser: Judges should protect our children, not sex offenders."

As the Milwaukee Journal-Sentinel's Tom Kertscher reports today, the ad is very misleading. In 1978, Prosser was told of a single allegation that priest John Feeney had touched two boys aged 12 and 14 "in the chest area and moved his hand downward toward their penises but did not touch them there. Feeney also pinched one of the boys on the buttocks."

Prosser was unaware of other instances of sexual abuse committed by Feeney, and decided not to prosecute because it would have been difficult to prove the allegation and he was concerned for the victims. Today, the victims vouch for Prosser's version of events and publicly support him.

Troy Merryfield, one of the victims, calls the Greater Wisconsin Committee's ad "offensive, inaccurate and out of context."

"In 1979, as a prosecutor, Prosser made the decision to not file charges against Feeney due to his concern about the emotional toll that a jury trial would have on my brother and me due to our young age at the time," Merryfield wrote in a letter. "If I was a resident of the State of Wisconsin, I would vote for David Prosser in the upcoming election."

Kloppenburg refused during a debate to denounce the ad, and it's unclear whether the ad is doing much damage to Prosser or whether it will backfire.

The bigger problem for Prosser is that the April 5 election will have very low turnout--as Robert Costa notes "nonpartisan spring elections usually draw less than 20 percent of the electorate: 18 percent in 2009, 19 percent in 2008, 19 percent in 2007, and 12 percent in 2006." And that's an advantage for the left, which is very energized in the wake of protests over Walker's budget repair bill.

While it's very rare for a sitting supreme court justice to lose an election, conservative Mike Gabelman became the first person to oust a sitting justice in 2008. Both the sitting liberal justice Louis Butler and his conservative challenger Mike Gabelman faced misleading attack ads that claimed they protected sex offenders. Gabelman won that election with 51 percent of the vote.